It’s Time to Allow People With Felony Convictions to Serve on Juries

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Nearly 20 million people in the United States are estimated to have felony convictions. This makes up approximately 8 percent of all adults and a full third of Black men.

They are forced to contend with the maze of policies that treats people with criminal records as less deserving, erecting barriers to the personal growth that enables stability and prosperity, and excluding them from multiple arenas of civic life.

Among these are felony disenfranchisement laws and bars on jury service, exclusions that lay bare how the criminal legal system functions as a mechanism for silencing the communities most affected by it. In addition to diminishing a sense of investment and belonging in a community, these laws compromise representation, at the voting booth and in courtrooms.

As efforts to end mass incarceration and expand voting rights have been gathering momentum, there has been increasing attention to these consequences. The passage of Amendment 4 in Florida last year (and the continued contest over expanded voting rights) and Democratic presidential candidate Senator Bernie Sanders’s stance that a criminal conviction should have no bearing on the right to vote (as is already the case in Maine, Vermont, and Puerto Rico) have brought renewed attention to the intersection of voting rights and criminal justice.

The bar on jury service has received less attention, but recent bills in California, Louisiana, and New York have sought to address it. All three states permanently bar people with felony convictions from serving on juries of all kinds. Another 25 states and the federal system do the same. Every other state except Maine bars jury service for people with felony records through the completion of a sentence or for some period of time following completion.

California’s bill, Senate Bill 310, would restore the right to serve on a jury. (New York and Louisiana’s bills failed to pass this year.) In an article last week for the San Francisco Chronicle, Brendon Woods, the chief public defender in Alameda County, argued for its passage.

Woods wrote that over the course of his 20-year career, “I can’t tell you how often I’ve sat at the defense table with a young African American client who was excited to prove his innocence, only to see his enthusiasm replaced with hopelessness and dread once he saw the jury. It’s difficult to tell a young man that he shouldn’t feel defeated when faced with the fact that not a single person who will be deciding his future looks like him.”

“The idea that those accused of crimes can have their cases decided not by judges or legal professionals—but by their peers—is designed to lend legitimacy to our criminal justice system,” Woods wrote. “This right is supposed to apply to all.”

Instead, in Alameda County, one of California’s most diverse, juror pools have vanishingly small numbers of Black people. “In two recent cases, two out of 92 identified as black and three out of 79 identified as black,” Woods wrote. This is not unusual.

Jury pools that fail to mirror communities are a problem across the country, for multiple reasons, including the use of voter registration and DMV records to call people for jury duty. The exclusion of people with felony records contributes to the troubling lack of diversity on juries.

The exclusion has consequences for the administration of criminal justice. As Woods pointed out, for any number of his clients, it erases the possibility of being judged by a jury of one’s peers. That, in turn, has consequences for the decisions that both defendants and prosecutors make throughout the life of a criminal case.

And what about the arguments in favor of this exclusion? In an article last year, James Binnall, a law professor who has himself been excluded from jury service in California because of a felony conviction, challenged the claims typically advanced against allowing people with felony convictions to serve. The first claim is that people convicted of felonies lack the character to serve on a jury. The second is that they will be biased in favor of the accused. Yet evidence, including Binnall’s research, does not support these conclusions.

In a study published last year, Binnall conducted a mock-jury experiment that included people with felony convictions and people without convictions. Binnall found that the participants with felony convictions displayed greater engagement and that the quality of deliberations for all involved was not affected by the presence of members with convictions. Participants with felony convictions were also as likely to convict as those without. Binnall told Mother Jones, “They were taking their time to try to decipher case facts. … Frankly, you know, they were good jurors.”

Moreover, as Binnall and Woods both argue, being included in a pool of potential jurors is no guarantee that one will be selected for jury service. As Woods wrote: “Lawyers and judges are trained to identify bias and are effective every day in dealing with potential bias in thousands of prospective jurors. Members of advocacy groups, members of hate groups, prosecutors and defense attorneys, friends and family members of the litigants, and innumerable others may harbor biases—but only those with prior felony convictions are categorically excluded.”

In Louisiana, where a law passed last year finally did away with the practice of nonunanimous jury verdicts, a bill to restore the right to serve on a jury five years after a person completed parole or probation was introduced. Even that limited bill, however, failed to pass.

In a piece for Mother Jones in May, Jacob Rosenberg interviewed Will Snowden, director of the Vera Institute of Justice’s New Orleans office, about the harms of disenfranchisement and the need for diverse juries. Snowden said conversations about ending disenfranchisement must include restoring the right to serve on a jury.

“We should be concerned as a community to restore all the necessary rights for that person to move on with their lives,” he said, “because that is something that is very frightening to certain individuals who have been very comfortable sitting on their thrones of power—that now there’s actually some more equity in the game, particularly for individuals who have been incarcerated.”